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STATE HOSPITAL REVIEW AND PLANNING COUNCIL
2
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5 PLANNING COMMITTEE
6 James Kennedy, Chair
7
8
New York State
9
Department of Health
90 Church Street
10
New York, NY 10001
11
12
Thursday,
September 18, 2008
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1:50 p.m.
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1
MEMBERS:
2
Jeffrey Kraut, Chairman
3 State Hospital Review and Planning Council
4 Michael H. Barnett, Esq.
Barnett, Ehrenfeld, Edelstein & Gross, P.C.
5
Howard Berliner, SC.D.
6 Professor and Chair, Health Policy and
Management,
7 SUNY Downstate School of Public Health
8 Russell W. Bessette, M.D.
Special Advisor to Senior V.P./V.P. of Health
9 Sciences
SUNY Buffalo
10
Patricia Smith Bransford, President
11 National urban Technology Center
12 Sr. Pauline Brecanier, O.Carm
Teresian House Nursing Home
13
Vincent J. Calamia, Jr., M.S, M.D.
14
15 Carolyn K. Callner, Deputy Commissioner
Schenectady County Public Health Service
16
Frederick B. Cohen, Senior Counsel
17 Independent Health Association, Inc.
18 Joan S. Conboy
19 James J. Daly
McKeen Fund
20
Renee Garrick, M.D., FACP
21 Renal Division, New York Medical College
22 James A. Ghent, Jr., Ph.D., J.D.
23 Edwin T. Graham, President and CEO
Gilda's Club Capital Region NY
24
Thomas E. Holt, President and CEO
25 Lutheran Social Services Group, Inc.
00002
1 Ingrid Jimenez, V.P., Operations
Visiting Nurse Services of New York
2
Margaret M. Johnson, Esq.
3 Senior V.P. and General Counsel
MediSys Health Network, Inc.
4
Megan V. Kearney
5
Richard K. Ketcham, President and CEO
6 Brooks Memorial Hospital
7 Marc I. Korn
Senior Associates, LLC
8
Anthony J. Lechich, M.D.
9 Sr. V.P, Medical Affairs and Medical Director
Terrence Cardinal Cooke Health Care Center
10
Paul F. Macielak, Esq., President
11 New York Health Plan Association
12 Stephens M. Mundy, President/CEO
Champlain Valley Physicians Hospital
13
James K. Reed, M/D, President and CEO
14 Northeast Health
15 Richard N. Rosenthal, M.D.
Department of Psychiatry
16 St. Luke's-Roosevelt Hospital Center
17 Joyce A. Salimeno
18 Lucille K. Sheedy
19 J. Patrick Sheeham
Citigroup Global Markets, Inc.
20
Michael S. Sloma
21 Apollo Health
22 Joel M. Zinberg, M.D., J.D.
23
24
25
00003
1 STAFF PRESENT:
2 Neil Benjamin
Karen Lipson
3 Thomas Jung
James Welsh
4 Charlie Abel
Norman Marshall
5 Christopher Delker
Mary Ann Anglin
6 Doug Reilly
Fran Weisberg
7 Julia Richards
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1
2
PROCEEDINGS
MR. KENNEDY: Welcome to the
3 September 18th meeting of the Planning
4 Committee of the New York State Hospital
5 Review and Planning Council. My name is Jim
6 Kennedy and I'm Chair of the Planning
7 Committee.
8
To my left is the Vice Chair of the
9 Planning Committee, Dr. Howard Berliner, and
10 to my left, also, is the Chairman of the State
11 Hospital Review and Planning Council, Mr.
12 Jeffrey Kraut. Next to him is the Director of
13 Division Policy, Karen Lipson and who was here
14 before was Mr. Neil Benjamin. I want to
15 recognize all of them for without their minds
16 and collective leadership, we would not be
17 engaging in the level of discussion that we
18 certainly have had today in the previous
19 committee meeting, but also in terms of this,
20 today, the second round of hearings that we
21 are having on the Certificate of Need.
22
We also have with us two members of
23 the Public Health Council, Mr. Stolzenberg,
24 Peter Robinson and Mr. Friedman. I would like
25 to welcome them, and also I would like to
00005
1 recognize my colleagues on the Planning
2 Committee for the work that they have been
3 doing in participating in these hearings. Mr.
4 Robinson, I know, is returning for a second
5 round this time.
6
The first round was on July 18th
7 where we hosted our first public discussion
8 among healthcare stakeholders from around the
9 State in Albany. The Department of Health,
10 State Hospital Review and Planning Council,
11 and the Public Health Council were there,
12 where we talked about reforming the CON
13 process. Today's second meeting is an
14 opportunity to continue that discussion.
15
Over two months ago the Department
16 announced that its implementation of the
17 Berger Commission recommendations concerning
18 hospital and nursing home closures and
19 restructuring is now complete. This
20 announcement capped a nearly three-year,
21 in-depth review and reconfiguration of New
22 York's health delivery system under the
23 auspices of the Commission and of the
24 Department. Now that the first stage of the
25 Commission's recommendations have been
00006
1 implemented, we now begin to focus on the
2 fundamental delivery service challenges that
3 were identified by the Commission.
4
The Commission's report criticized
5 the State's delivery system for its over
6 development and inpatient hospital and nursing
7 home beds, its uneven distribution of
8 healthcare resources, and inadequate
9 investment in preventative care as well as the
10 continuation of a medical arms' race among
11 hospitals. The CON process is but one tool
12 that can be deployed to alleviate these
13 concerns. In the decade since our CON process
14 was first conceived, New York's healthcare
15 delivery system has undergone a dramatic
16 change. Our CON process needs to respond to
17 those changes. The Department, SHRPC, and the
18 Public Health Council are committed to an
19 improved CON process that promotes the
20 alignment of healthcare services and community
21 health needs and supports the overall
22 development of patient centered care and a
23 high performing healthcare delivery system.
24
We are committed to a CON policy that
25 stimulates competition on the basis of cost
00007
1 and quality, but not over the acquisition of
2 duplicative technology and construction of
3 excess beds. With input from a diverse group
4 of stakeholders in the healthcare field, from
5 our July 18th meeting, today, as well as in
6 other forums, we intend to make improvements
7 to the CON process that advances all of these
8 goals.
9
We are looking forward to hearing the
10 views of the stakeholders who are invited to
11 present today. First, let me lay out a few
12 ground rules to follow, to make this a
13 productive meeting for everyone.
14
First, I would like to remind Council
15 members, staff, presenters and the audience
16 that this meeting is subject to the Open
17 Meetings Law and is broadcast over the
18 Internet. There is an additional room behind
19 me where those who cannot find a seat in here
20 can sit and also view the presentations. The
21 webcast is accessible on the Department's
22 website. The high demand webcast will be
23 available no later than seven days after the
24 meeting, for a minimum of 30 days, and then a
25 copy will be retained by the Department for
00008
1 four months. Because they are synchronized,
2 captioning is important, and people should not
3 speak over each other. Captioning cannot be
4 done correctly with two people speaking at the
5 same time. So please be recognized.
6
The first time you speak, please
7 state your name and briefly identify yourself
8 as a Council member, SHRPC, or Public Health
9 Council or a DOH staff member. This will be
10 of assistance to the broadcasting company in
11 recording this meeting. The company here
12 today is Total Webcasting, Inc. Please note
13 that the microphones are, quote/unquote,
14 "hot," meaning they pick up every sound. I,
15 therefore, ask you to avoid the rustling of
16 papers next to the microphone, and also to be
17 sensitive about personal conversations or side
18 bars, as the microphones will also pick up
19 this.
20
Each presenter is allotted
21 approximately 15 minutes for both his or her
22 presentations. Mr. Kraut is going to act as a
23 timekeeper, and this includes questions and
24 answers. I will ask all participants to be
25 mindful of this time limit so that everyone
00009
1 has sufficient time to present.
2
Also, because of the extended Project
3 Review Committee meeting that we had, I would
4 ask presenters, particularly those who follow
5 later on in the proceedings, to be mindful of
6 ideas, concepts, suggestions that have already
7 been suggested, and while we ask you to feel
8 free to allude to them or emphasize them,
9 please know that since we are running late,
10 there is a likelihood that many ideas, I.E.,
11 the level playing field, will be spoken to
12 again and again. So in terms of our time
13 limits, please be mindful of that.
14
I also know that a couple of our
15 members do have to leave early to catch
16 flights or have other appointments, so I just
17 wanted to make you aware of that. So, please,
18 try to be as efficient as possible in your
19 remarks.
20
I would like to welcome our first
21 presenter today, representing the New York
22 City Health and Hospitals Corporation, Ms.
23 LaRay Brown, who is the Senior Vice President.
24
MS. BROWN: Good afternoon,
25 Chairperson Kennedy, Members of the Planning
00010
1 Committee and colleagues of the healthcare
2 bill. I am LaRay Brown, Senior Vice President
3 for Corporate Planning, Community Health and
4 Intergovernmental Relations of the New York
5 City Health and Hospitals Corporation. HHC is
6 a public benefit corporation created by the
7 State legislature in 1970 to operate the
8 City's municipal hospitals. It's the largest
9 municipal hospital system in the country. We
10 operate facilities in all five boroughs and
11 provide comprehensive, quality care,
12 ambulatory skilled nursing facilities, and
13 behavioral healthcare and a wide variety of
14 specialized patient care services throughout
15 New York City.
16
I am not going to go through any more
17 of what we do. Most people in this room are
18 familiar with the Health and Hospitals
19 Corporation.
20
Our system-wide initiatives include
21 enhancing quality and patient safety, using
22 transparency to drive performance improvement.
23 We look at the patient's experience in
24 implementing patient, provider and strategic
25 management collaboration. On behalf of HHC
00011
1 and President Alan Aviles, we are grateful for
2 the opportunity to provide comments and
3 recommendations regarding the Certificate of
4 Need process reform, and appreciate the reform
5 goals, developing a patient-centered, high
6 performing healthcare delivery system that
7 offers accessible, affordable, and
8 professional care.
9
I would like to direct my first few
10 comments toward issue item 4, the CON
11 submission and review process. In subquestion
12 A, the issue item number 4 asks: Is there a
13 way that the CON review process could be
14 streamlined and to what effect?
15
We recommend that the Department take
16 a page from the college common application
17 process. Many of you are smiling. I am sure
18 you have probably been through that effort,
19 the process where technology is used to
20 streamline the application, and currently
21 there are electronic fillable application
22 forms that would allow the Department to
23 especially have a back-up review copy of what
24 has been submitted in hard copy. However,
25 taking this functionality one step further, to
00012
1 a design implementation of a web based
2 information form, the technology would create
3 an opportunity for greater satisfaction,
4 transparency, efficiency and accountability
5 throughout all the steps of the CON process.
6
Concretely, this would facilitate
7 better tracking and information sharing of the
8 project milestone and, most importantly, the
9 responses. For example, the form would allow
10 providers and Department of Health Project
11 Management staff to review metrics that show
12 the number of days of response outstanding on
13 30-day or 60-day letters and it could
14 facilitate a more timely response. It's just
15 the staff and cuing projects for review.
16
The subquestion B of item 4 asks:
17 Are there aspects of the process that are
18 duplicative, unnecessary, or provide minimal
19 marginal benefits?
20
For the past several years, HHC and
21 several of our provider colleagues have
22 reviewed 30-day letters on CON applications
23 requesting a business plan. Much of the
24 content, we believe, of a business plan is
25 also requested in existing CON schedules, and
00013
1 to those who request it can appear to be
2 duplicative. However, if, in fact, the
3 Department wants a business plan to address
4 specific concerns, then we ask and recommend
5 that the Department incorporate an expected
6 format and minimal content into the CON
7 application, which eliminate the Department's
8 need to request this information as a 30-day
9 letter and, thus, shorten the review period.
10
Subquestion C of issue item 4 asks:
11 How should the CON process weigh the financial
12 impact of a project of services on Medicaid
13 and other payers, and ultimately consumers and
14 taxpayers?
15
An element of the New York State
16 Department of Health's stated vision is to
17 make New Yorkers the healthiest people in the
18 nation, but as we all are aware, New Yorkers
19 fall into all income categories, including
20 those that are low income and uninsured.
21 Therefore, the CON process must balance
22 maximizing the short and long-term revenues of
23 a project with weighing the value of those
24 projects in addressing the needs of all New
25 Yorkers, including those who are most
00014
1 vulnerable.
2
Frankly, this is not in my testimony,
3 but we are sometimes frustrated in the need to
4 address a business plan, particularly in light
5 of our mission and, often, frankly, we have
6 very difficult conversations about particular
7 projects and how they may impact the Medicaid
8 program, but also how might we assure that
9 people who don't have Medicaid or who have
10 special needs are also assured access to
11 healthcare services.
12
So, again, the CON process must
13 balance those two very important public policy
14 concerns. We encourage the State Department
15 of Health, as it is doing with Heal 9, to
16 continue to resource local collaborative
17 planning efforts, but I emphasize resource,
18 because while there is the dire need for local
19 collaborative efforts, it is not going to
20 happen unless there are resources directed
21 towards it. Frankly, in those communities
22 where a collaboration is most important
23 because there may be small, not so rich
24 providers, and a lot of need and a lot of
25 community organizations and a lot of folks who
00015
1 might be disenfranchised, they are the ones
2 who need the most, in terms of collaborative
3 planning efforts to take place, to assure that
4 there is an effective and fully accessible
5 healthcare delivery system, and they would
6 have the least amount of resources.
7
So we encourage you to do what you
8 are doing more, in terms of Heal 9, and at the
9 same time, we are also encouraging that the
10 Department should hold these collaborators
11 accountable for identifying and generating
12 metrics that would measure the efficacy of
13 their interventions over time, understanding
14 that efficacy can be measured over short and
15 long-term periods.
16
As to issue item number 1, project
17 services and equipment: We recommend to
18 increase in the minimum cost thresholds for
19 both limited and administrative review
20 applications involving construction.
21
The current cost thresholds were
22 updated at least ten years ago. According to
23 the Dormitory Authority of the State of New
24 York, construction costs in New York City have
25 increased 300 percent over the past two
00016
1 decades, and in the past two years, the cost
2 of new construction has increased at a rate of
3 12 percent a year. So, essentially, a limited
4 review application of 10 years ago, with the
5 same project scope, could be bumped into
6 administrative review levels today because of
7 the rapid increase in the cost of
8 construction. The same example would hold for
9 an administrative review project and its
10 current threshold, less than 10 million
11 dollars.
12
This concludes my statements on
13 behalf of New York City Health and Hospitals
14 corporation. I will be happy to take any
15 questions.
16
MR. KENNEDY: Dr. Berliner?
17
DR. BERLINER: Thank you. Let me
18 ask a somewhat direct question: Do you think
19 that the CON process as it is currently
20 constituted in this State helps poor people
21 and uninsured people?
22
MS. BROWN: No.
23
DR. BERLINER: Would you recommend
24 any specific improvements to it or changes in
25 it?
00017
1
MS. BROWN: I recommend, I believe
2 maybe it was several years ago, maybe even
3 decades ago, there used to be a requirement
4 that applications had strong information, a
5 strong component of information about how does
6 that project improve access to healthcare
7 services. What I meant, in term of metrics,
8 that if, in fact, the State resources
9 collaborative planning that, number one, the
10 value or strong principle of that
11 collaborative planning should be the outcome
12 of services available to all. Therefore,
13 metrics related to, how is that achieved, at
14 the end of that collaborative planning
15 process.
16
But to get back to your specific
17 question, I don't see the CON, the current
18 format that's used, being strong enough in
19 requiring that applicants, number one, justify
20 not only the need for their program as it
21 relates to a bottom line and how much dollars,
22 Medicaid dollars are being expended, but more
23 over, how quantifiably they are going to
24 assure access to everyone. Now, I might be
25 passionate about this because of where I have
00018
1 been for 21 years, but I do think that the
2 State is responsible for healthcare for all,
3 as well as responsible for balancing and
4 assuring accountability with public health
5 dollars.
6
DR. BERLINER: Thank you.
7
MR. KRAUT: LaRay, you head up what
8 is arguably the planning efforts of one of the
9 largest healthcare systems in the country, do
10 you think that the corporation should have,
11 because it's a system, because it's
12 integrated, should it have special kinds of
13 powers to move things around within the
14 network, that would not necessarily require
15 CON? Are there things that could be provided
16 so you could do a better job of providing
17 access, I guess?
18
MS. BROWN: Is there a way in which
19 the CON process could facilitate our being
20 able to be a flexible, integrated, delivery
21 system? Yes, I do believe that's the case. I
22 do think, that as our colleagues of the State
23 are considering need, I think we apply, for
24 example, for the development of a skilled
25 nursing facility that happens to be located in
00019
1 the Lower East Side of Manhattan, that there
2 needs to be consideration that there is not
3 limited access to that facility, that it's not
4 limited to residents of the Lower East Side of
5 Manhattan. Although we try to be community
6 centric and neighborhood focused, because we
7 have a large, acute care system, we are also
8 looking to leverage the capacity that we have
9 in our entire long-term care system.
10 Therefore, when we apply to expand a skilled
11 nursing facility that happens to be in one
12 locale, consideration needs to be given to how
13 that capacity is not only going to address
14 that neighborhood, but also the patients who
15 are observed throughout our system, and how,
16 frankly, our goals, which I think are shared
17 goals in terms of the public hospital system
18 and the public health and state health
19 authority, as to how people can move from one
20 level of care to another, and if we assume
21 responsibility for their full range of care,
22 that that consideration needs to be given as
23 we submit individual or discreet projects; the
24 overall systemness of the Health and Hospitals
25 Corporation needs to be considered in that
00020
1 evaluation.
2
MR. KRAUT: Thanks, that's a good
3 example.
4
DR. BERLINER: LaRay, if I can
5 follow up: Do you think that the ability
6 within an integrated health system or any of
7 the large health networks or systems, that any
8 of those systems should be allowed to move
9 resources around within the levels already
10 approved by the State through the CON process?
11
In other words, is that not just for
12 you but -13
MS. BROWN: Frankly, I think, all
14 integrated systems, including HHC, we should
15 be held accountable for what we are spending
16 and the outcomes of the care that we provide,
17 and there should be metrics. Anybody who,
18 whether it's a public or non-public integrated
19 delivery system, meets those metrics, then
20 they should, therefore, then be allowed to
21 work as a system.
22
So the CON requirements should be
23 facilitative of that systemness, facilitative
24 of achieving those outcomes and, again, we
25 should be allowed to work in a partnership
00021
1 with the State to achieve the end results.
2
Therefore, individual projects, that
3 may happen to come up, need to be reviewed
4 within the context of the larger
5 organizational structure and responsibilities
6 of that organization.
7
MS. LIPSON: LaRay, I don't want to
8 put you on the spot.
9
MS. BROWN: I am used to it, you are
10 not in City Council, so ...
11
MS. LIPSON: You, Lauren and I
12 talked a few months ago about some of the
13 local planning initiatives that HHC is
14 involved in with the New York City Department
15 of Health and Mental Health and the other
16 providers and stakeholders in and around New
17 York City, and I am wondering if you can share
18 some of those initiatives with the group here.
19
MS. BROWN: I think there are some
20 witnesses who are going to talk about that,
21 but I will give a recent -- I have a couple of
22 examples to provide. Let me start in Staten
23 Island.
24
On Staten Island, about three years
25 ago, Health and Hospitals Corporation,
00022
1 frankly, at the encouragement and strong
2 opinion of local elected officials, as well as
3 others, was asked to develop a planning
4 process that would review what was considered
5 to be a significant unmet need, in terms of
6 healthcare access for the residents of that
7 borough. At the same time, there were some
8 critical issues presented, evolving, that
9 related to at least one of the acute care
10 hospitals, but in fact there were some
11 challenges for the other hospital. So the
12 genesis of that concern was that there was not
13 an HHC hospital.
14
We tried then, and we continue to try
15 to frame our efforts around healthcare access
16 and not whether there's a hospital response to
17 that, but whatever level of care is
18 responsible for that, but to start from what
19 is the need of a population and what are the
20 gaps.
21
So we convened a pretty large
22 stakeholders' group, included every single
23 elected official from Federal, State, to local
24 elected officials and their designees. It
25 included the two hospital systems on Staten
00023
1 Island; it included every single special
2 population provider, mental health, HIV, every
3 single organization that works with any
4 possible immigration organization or
5 immigration groups, as well as several other
6 non-Staten Island-based organizations like the
7 Primary Care Developed Corporation, et cetera,
8 to come up with a Staten Island-driven
9 healthcare plan and, frankly, to help inform
10 HHC, as well as the City of New York as to
11 what short-term and, long-term investments we
12 needed to make.
13
One result of that, one outcome of
14 that work, and we are still doing that work,
15 was the development of a community health
16 center, which now has FQAC look-alike status,
17 and the goal is for it to be a federally
18 qualified health center. So the result of
19 that process was the agreement that what was
20 extremely important and a huge gap in service
21 was access to primary care services in a
22 particular portion of the borough, and with a
23 particular focus on immigrant populations and
24 low-income, uninsured individuals, and that
25 was first.
00024
1
Other things that have come out of
2 that, frankly, was the creation of other
3 services or expansion services that HHC had;
4 in fact, shifting services in our child health
5 clinics, to be able to provide greater access
6 of those clients to specialty and other
7 services at the hospital. So tightening up
8 those back-up plans and making them more into
9 service integration plans. That's one
10 example.
11
Another example is at the request of
12 -13
MR. KRAUT: LaRay, you have one more
14 minute.
15
MS. BROWN: Okay. At the request of
16 the City Council Speaker and the Mayor's
17 office, HHC was asked to develop a community
18 health assessment to help inform the decisions
19 in terms of investment in primary care. We
20 convened a very, very diverse group, including
21 health providers, the City's health agencies,
22 but more importantly, community based
23 organizations who provide not health care
24 services, but support services in different
25 locales, frankly, driven by what we know are
00025
1 medically under served neighborhoods. We also
2 engaged 14 CBO's in working with us to
3 actually do on-the-street interviews of
4 individuals as to what their access issues
5 were or challenges and access to healthcare
6 services; what their access or concerns were
7 in terms of health insurance, as well as a
8 myriad of focus or discussion groups, of very
9 specific populations who might not get an
10 opportunity to voice their concerns in what
11 would be considered the governmental planning
12 process.
13
I could go on, but I think I have
14 used up my time.
15
MR. KENNEDY: Thank you, Ms. Brown.
16 Also, thank you for setting the tone for the
17 presentations today.
18
Next up, I would like to ask,
19 representing the Greater New York Hospital
20 Association, Ms. Susan Waltman, Executive Vice
21 President and General Counsel, and
22 representing Memorial Sloan Kettering Cancer
23 Center, Ms. Cynthia Maccallum, Associate
24 Hospital Administrator. For their combined
25 presentation, they will be allowed 20 minutes.
00026
1 Thank you.
2
MS. WALTMAN: Thank you very much.
3 We will divide this up for purposes of today's
4 presentation, as I have a little more systemic
5 presentation and Cynthia Maccallum will be a
6 more private-oriented presentation.
7
I'm Susan Waltman. I'm Executive
8 Vice President for Legal, Regulatory, and
9 Professional Affairs, and General Counsel for
10 the Greater New York Hospital Association.
11 With me, as indicated, is Cynthia Maccallum,
12 the Associate Hospital Administrator at
13 Memorial Sloan-Kettering Cancer Center.
14
We very much appreciate the
15 leadership of the State as you undertake this
16 review of the Certificate of Need program. We
17 have submitted detailed written comments. I
18 will review for you today just a summary form
19 of those comments. We have attached to our
20 comments an extensive chart, however, that
21 Greater New York has put out and updated over
22 the years. It shows the complexity of our
23 program. I am not someone steeped in the way
24 the program works or filing applications, and
25 looking at this for the purpose of today's
00027
1 comments, it looked like something I would
2 have to learn in organic chemistry, but it is
3 a program that has evolved extensively over
4 time to meet the needs of, obviously, the
5 different types of equipment that has evolved.
6 We do feel very strongly, however, that it is
7 a program that needs to be overhauled, which
8 is exactly why we are undertaking this.
9
We have looked at this very hard, and
10 we have concluded that the program does not
11 effectively further the goals that the State
12 put forward with respect to cost control and
13 quality access. It's in great part due to the
14 evolution of our healthcare system and the
15 other dynamics in the marketplace, so to
16 speak. We, therefore, think that there is no
17 way to describe the program, other than that
18 it has become overly complicated, expensive,
19 and burdensome, not because of any of the
20 individuals who handle it necessarily, but
21 just because we think that it doesn't serve
22 its purpose, that there are other means of
23 meeting its goals, and the cost, obviously,
24 outweighs, we think, the benefits.
25
In essence, in summary, we think that
00028
1 the program should increase its cost threshold
2 very significantly. It should exempt
3 non-clinical projects entirely. It should
4 streamline the process that is left.
5
On the issue of out migration -- I'll
6 give a little more detail on what I just said,
7 but on the issue of out migration, we feel
8 very strongly that the State should take steps
9 -- and many of you heard this morning, this
10 debate, obviously -- to stop the proliferation
11 of free-standing, non-hospital-based
12 ambulatory surgery centers that threaten the
13 ability of hospitals to deliver care, needed
14 care to their communities.
15
Finally, we call upon the State to
16 work with us to develop creative and
17 meaningful mechanisms for accessing capital in
18 order to ensure that we move forward, post
19 Berger Commission recommendations, to meet the
20 needs of our communities.
21
Many of you are aware that there have
22 been studies and that many states have
23 actually looked at the efficacy and value of
24 their Certificate of Need programs. I have
25 outlined some of those studies in my
00029
1 testimony. There are, clearly, conflicting
2 conclusions as to whether, over time, these
3 Certificate of Need programs across the
4 country have met their goal of cost control,
5 some saying they have historically; some
6 saying they have actually increased the cost
7 of healthcare. One Of the most often quoted,
8 still quoted studies concludes that even where
9 it may have historically controlled costs,
10 there has not been any rush to increase
11 capital expenditures when the program is
12 actually eliminated.
13
New Jersey has been a state that has
14 recently looked at its program. They know
15 that a report that went into the New Jersey
16 version of the Berger Commission actually
17 recommended elimination, total elimination of
18 New Jersey's Certificate of Need program. The
19 full Commission, headed up by Uwe Reinhardt,
20 did not embrace that particular conclusion,
21 but did recognize that the New Jersey program
22 needed the total overhaul and focused very
23 clearly on the fact that it may have a very
24 important role as it related to the quality of
25 services; where there is a relationship
00030
1 between volume and quality, perhaps it has a
2 meaningful goal.
3
It's against that backdrop that I
4 made my recommendations on behalf of the
5 Greater New York Hospital Association, with
6 respect to the Certificate of Need program.
7 We outline in detail why we think that the
8 program not only doesn't meet the current
9 goals as it relates in particular to cost
10 control, but why there are so many other
11 mechanisms in play at the current time that
12 really serve that purpose, from the State's
13 regulatory and licensing authorities, to your
14 day-to-day oversight from the standpoint of
15 quality.
16
You have taken bold steps, I believe,
17 to encourage us, to require us to pursue best
18 practices, to undertake healthcare in a
19 transparent and accountable way. You have put
20 forward very, very creative financing
21 mechanisms in order to incentivize or
22 disincentivize certain behaviors. It's the
23 same array of external factors, I believe,
24 that fulfill these functions of cost control
25 access and quality.
00031
1
And then there are the costs of the
2 programs. Cynthia will speak to some of them.
3 The State itself has outlined them, for
4 example, on the State register when the State
5 last increased the thresholds, actually
6 picking through the costs that the program
7 brings to providers in terms of delays in the
8 application process. It did not, however, go
9 into what you heard earlier from Ms. Brown,
10 and that is the cost of construction as we
11 await the Certificate of Need application.
12 Indeed, there are studies that indicate that
13 the cost of delaying construction by one year
14 is 12 percent, and that the cost goes up over
15 time. So as the delays occur, the cost of
16 construction goes up along with it.
17
When you take those different factors
18 that the studies look at, does the program
19 further its goals? Are there other ways to
20 meet the goals and what are the costs? I do
21 think the conclusion is that New York's
22 program, notwithstanding the good efforts of
23 everyone, does not effectively meet its goals
24 and, therefore, requires the overhaul that we
25 have outlined.
00032
1
It has been ten years since the State
2 increased its cost threshold in 1998. They
3 were actually in two steps. They increased
4 the thresholds the first time in a small step,
5 and a second time because there were too many
6 -- it didn't pick up enough of the projects
7 that it wanted to take out of the Certificate
8 of Need program, but it very much, at that
9 time, indicated that they needed more
10 flexibility because of the forces in the
11 marketplace in our healthcare environment. I
12 would suggest that we have even more stronger
13 intensified forces today to really take care
14 of the issues of cost-control access and
15 quality.
16
Therefore, as you see, we recommend
17 very much tremendous increases in the cost
18 thresholds, to take into account the
19 experience that we have for increased cost of
20 construction, raising the administrative
21 review thresholds from 3 million to 10
22 million; full review from 10 to 25. We also
23 recommend, as I indicated, entirely non24 clinical projects. I say that because I
25 recognize the value of the Certificate of Need
00033
1 program, as many studies in other states have,
2 as it's mainly related to quality, and where
3 quality involves the importance of competency
4 of the provider for high-tech services, but no
5 one today is embarking on non-clinical
6 projects unless they are absolutely needed,
7 and it should be left to the discretion and
8 authority of management to budget for
9 non-clinical projects the same way it does for
10 other types of expenditures.
11
I also think, and you will hear a
12 little bit from Ms. Maccallum, that the
13 program that will remain needs to be
14 streamlined. We made some specific
15 suggestions. We know that the State agrees
16 with some of these suggestions, in terms of
17 the need to make it more streamlined for the
18 benefit not just of the applicants, but for
19 the State itself.
20
On the out-migration issue, Greater
21 New York has long advocated for a moratorium
22 on free-standing non-hospital-based ambulatory
23 surgery centers. We are very concerned about
24 their negative impact on hospitals and their
25 ability to undermine the healthcare they can
00034
1 provide to their communities. That is our
2 sole concern with respect to this. You would
3 expect us, as our public does, to provide high
4 quality care to our communities and expand our
5 access which is being undermined by the out6 migration services, the more profitable
7 services.
8
We recognize that there are questions
9 raised about the ability of the State of New
10 York to look at that impact. I make you aware
11 that we filed an amicus brief in the South
12 Shore case, when there was an Article 78
13 proceeding against the Public Health Council
14 in which we took a position, but the State,
15 all of you, have the authority and the
16 responsibility to actually look at the impact
17 of these ambulatory surgery centers on
18 hospitals. We recognize that you think you
19 need to only just look at the criteria that
20 are listed in the regs, I would suggest that
21 every single one of those specific
22 requirements take into account the impact of
23 that ambulatory surgery center in terms of
24 referral patterns, access, et cetera, and you
25 cannot just look at the positive aspects of
00035
1 those criteria. You also must, I would
2 suggest, as part of the planning, the law and
3 the regulations, you must look at the impact
4 that they have on hospitals.
5
We have a brief section in our
6 comments on community health planning. We are
7 very much supportive of what the State is
8 doing with respect to community health needs'
9 assessment, collaborative planning. I am a
10 big supporter of the State's prevention
11 agenda. We are working with the New York City
12 Health Department, the implementation of that
13 agenda locally, and we look forward to the
14 data that are becoming available to help us in
15 that process. We do not want you, however, to
16 lose track of the value of our academic
17 medical centers and very tertiary teaching
18 hospitals and undermine them in that way as
19 community need planners.
20
Our final point in there, as I
21 indicated, is the need for capital. We have
22 long suffered from limited access to capital
23 for a lot of reasons. We are perhaps the most
24 unfortunate, hospitals, nationally, when it
25 comes to looking at financial indicators. The
00036
1 State of New York's own requirement, that we
2 have to arrange for credit enhancement in
3 order to go out to issue bonds, for example,
4 and other factors, limit our access to
5 capital. We call upon the State to work with
6 us to develop meaningful access to capital so
7 that we can serve our communities better.
8
MS. MACCALLUM: Good afternoon.
9 Thank you for the opportunity to append
10 testimony to Ms. Waltman's.
11
I'm Cynthia Maccallum from Memorial
12 Sloan-Kettering Cancer Center, and I'm
13 speaking today as a representative provider
14 who is very familiar with the CON process. We
15 file about six CON's a year on average; we
16 have filed more than three dozen since the new
17 Millenium.
18
I would like to just preface my
19 remarks today with the comment that we have a
20 great deal of respect for our colleagues at
21 the Department of Health, and that my comments
22 today reflect the frustration that, I think,
23 is shared by many of them: That we are trying
24 to do too much with suboptimal resources and
25 are doing it in a way that is less efficient
00037
1 than it might be. I hope that the comments
2 that I make today will assist the Department
3 as well in streamlining the process in the
4 face of budget cuts and hiring freezes. We
5 are all trying to do a lot more with less.
6
We do all of our own CON preparation.
7 We do not hire consultants who are attorneys
8 to assist, and so all the burden and the cost
9 falls on the existing hospital staff, all of
10 whom have day jobs in addition to preparing
11 CON's. So what happens when we set about to
12 prepare a CON? We're faced with upwards of 20
13 schedules and many, many departments who have
14 input into filling out those schedules. The
15 schedules aren't always relevant to the
16 project at hand. This is particularly true of
17 information systems' projects, but many
18 projects have schedules required that actually
19 don't add a whole lot of value.
20
There is no way to keep standing
21 information on file with the State, so we end
22 up refiling the same information up to six
23 times a year. The schedules that we don't
24 feel are relevant and instructions often tell
25 us not file, we leave out, only to then get a
00038
1 phone call asking us to please file them
2 anyway. The schedules don't allow for
3 footnoting or flexibility or ways to explain
4 information that might be puzzling, and
5 although we include that information in the
6 narrative, the connection isn't always made by
7 the individual reviewing the schedule in
8 question.
9
So after we spend weeks on end
10 pulling together what we believe to be an
11 optimal CON filing, we are then faced with the
12 request that we submit the original with eight
13 copies and/or drawings, and that in order to
14 prove receipt, we need to send it by either
15 registered mail or UPS. So we have a
16 Xerox-a-thon that goes on in the hospital
17 administration copy room, where we create this
18 mound of tree-killing material, which is then
19 boxed up and tubed up and hauled up to the
20 mailroom. I looked at our UPS bill to the
21 Department of Health, and it's hundreds of
22 dollars every year to get this stuff to
23 Albany. I honestly don't know where all nine
24 copies go, but I have visions of this box
25 getting torn open and some poor person
00039
1 stuffing this all into envelopes and routing
2 it through the Department.
3
Then we begin the process of trying
4 to find out if it's actually been logged in
5 and gotten a log number, which involves many
6 phone calls and eventually we get an
7 acknowledgment letter. Sometimes it takes a
8 couple of weeks; sometimes it's taken up to a
9 month or two. Then we have a log number and
10 we begin the process of calling and annoying
11 very busy people by trying to learn what the
12 status of the CON application is, who's got it
13 and what more they need to know. In looking
14 over the past three dozen filings, it takes
15 approximately eight months to get our initial
16 approval letter, and that invariably is an
17 approval with contingencies, and then the
18 process of responding to the contingencies
19 begins.
20
Then, we produce more information
21 which we box up and send off to Albany. Then,
22 once all of the information is assembled and
23 we receive an "all contingencies met letter,"
24 then we actually have to initiate a process
25 where we request approval to begin
00040
1 construction, which doesn't make a whole lot
2 of sense because of course we would want to
3 begin construction, so we are not sure why
4 that process isn't automatic.
5
Then, we are about the thirteenth
6 month, on average, and we begin construction
7 at last. Once we do that, we get through the
8 project, which may take a few months, perhaps
9 up to a year or two for complex projects, and
10 at the end of that process, we then begin the
11 process of working with the regional office
12 here in Manhattan to get a surveyor to come to
13 a preoccupancy survey.
14
The surveyor arrives on site after
15 what can sometimes be a difficult scheduling
16 process. They're very taxed and there are
17 very few of them, and often they arrive and
18 have disparities with how the plans have been
19 approved in Albany and they have different
20 interpretations of code. So then we have a
21 back and forth, if that happens, with Albany,
22 trying to get resolution of what the code
23 interpretation should be. At the end of the
24 survey, invariably, additional information is
25 requested from the area office. So we then go
00041
1 about the process of filing that with the area
2 office manually, often having been hand
3 delivered, and at the end of that process, it
4 then has to be reviewed by the surveyor, who
5 is usually now out in the field surveying a
6 different project.
7
So anywhere from 10 days, often
8 longer, later, we finally get the response
9 from them as to whether the information we
10 have submitted has met their needs, and the
11 process of actually getting the letter that
12 allows us to occupy the space we have
13 constructed begins. At some point, usually
14 within a month that letter arrives and we are
15 now ready to open for business.
16
So why does this matter? Well,
17 that's a total of 14 months on average, not
18 including the construction time. It is not
19 good for patient care. The construction
20 projects we undertake are to make thing better
21 for our patients, to improve access, to cut
22 wait times, to create a better patient
23 experience. Additionally, we are losing
24 revenue for the services we are unable to
25 provide.
00042
1
Susan referenced ambulatory surgery
2 centers, I would also add private imaging
3 centers. Often times, as we are trying to
4 increase our imaging capacity -- cancer
5 patients use a lot of imaging services -- we
6 are having to send patients out to private
7 centers in the community and we don't have the
8 same quality checks on the work that is done
9 there. The revenue goes to a private practice
10 and they have to get copies of their films
11 brought in and scanned into our system.
12
Meanwhile, as Susan mentioned, the
13 bids expire, our costs escalate, we have to
14 rebid projects. We often have to lease space
15 and pay the rental costs, which are not
16 reimbursed, in order to keep the space
17 available for when we do get project approval
18 and can begin to build. At the end of the day
19 a lot of staff time is used after DOH, and at
20 our end, that probably could be better used in
21 different ways.
22
What is the fix? Susan referenced
23 many fixes like increasing the limits for
24 CON's, reducing the number of projects that
25 require them. I would also add that many of
00043
1 the need methodologies, particularly for
2 imaging and high-tech services, need to be
3 reformed to reflect current technology and not
4 technology of 10 and 15 years ago. Most of
5 all, I would beg, as a provider, for
6 automation of this process; for a web-based
7 process, where we can submit the applications
8 on-line; where they ought to distribute to the
9 people who need them; where we can go on line
10 and see which bureaus are reviewing them and
11 what the status of the review is; where a
12 request for additional information can be
13 transmitted electronically in both directions,
14 including our responses; where we have contact
15 information in each bureau, knowing who has
16 got our project; where approval letters could
17 self-generate from each bureau. That way,
18 when we've got a financial contingency, we can
19 be addressing that even if EAEFP is still
20 reviewing their part of the project. At the
21 end of the day, when all bureaus have approved
22 it, it could generate an automatic approval
23 letter. We think that would go a long way to
24 making all of our lives a lot easier and
25 spending our time a lot better.
00044
1
I thank you very much for the
2 opportunity to speak to you today.
3
MR. KENNEDY: Thank you.
4
Dr. Berliner?
5
DR. BERLINER: Let me start with Ms.
6 Waltman, if I may. So why keep CON? One can
7 easily imagine other ways of controlling the
8 quality of care and the cost of care that
9 don't revolve around limitations of access to
10 capital or equipment. Other states have tried
11 that, don't see markedly differences in
12 outcomes of quality of care or, in fact,
13 spending. So, why, given the critique that
14 you made out, which I think is very salient,
15 why not just get rid of CON in the State
16 completely?
17
MS. WALTMAN: What I have seen, and
18 I am sure you have read those studies too, is
19 that it is concluded that it does have a role,
20 a favorable impact in terms of promoting
21 quality. Admittedly, which is probably where
22 you are going, it becomes a door, it's an up23 front barrier, so to speak, whether it is
24 someone establishing a new service or an
25 existing provider actually providing something
00045
1 that might be very sophisticated or high tech.
2 What the studies would indicate, as I
3 understand it, is that where there is a
4 correlation, perhaps, between the volume and
5 quality or the competency of the provider,
6 that it does serve a role.
7
DR. BERLINER: You can easily
8 imagine a system that exists in Florida for
9 cardiac surgery where, if there were no
10 controls on setting up a system but after X
11 number of years, two or three years, if you
12 don't meet particular volume requirements or
13 quality requirements, the state refuses to
14 reimburse you any more.
15
MS. WALTMAN: I understand. That's
16 another alternative. I would suggest,
17 however, we have such a delicate balance in
18 New York with respect to healthcare. I am
19 only speaking to hospitals, that's what I am
20 here for. There are so many of our members
21 who remain financially stressed, for example,
22 notwithstanding the implementation of the
23 Berger recommendations. I want to say this:
24 It was Greater New York, together with other
25 partners, who actually recommended the need
00046
1 for such a Commission, because of the
2 financial pressures facing the hospitals and
3 because we wanted a planful, thoughtful way to
4 strengthening the system.
5
We have implemented some of them. We
6 are very worried about some of the remaining
7 hospitals. There are so many that have
8 closed, it has not solved the issue for a lot
9 of our other hospitals that are very needed by
10 our communities, not just for tertiary care,
11 but the care that they deliver. I would
12 suggest, and it has a flavor, admittedly,
13 protectionism, but if you open those doors and
14 you let anyone start to deliver services,
15 whether it's the ambulatory surgery centers or
16 it's the imaging centers, it will pull more
17 and the more of the services out of our
18 existing hospitals. They will become weaker,
19 and I think it's a very valuable element, that
20 that degree, admittedly, of protectionism,
21 some people would say, provides support and
22 strengthens New York's healthcare system
23 because it keeps in place those who deliver
24 many types of care already.
25
DR. BERLINER: Thank you for that
00047
1 response. I think that's actually the
2 dialogue we are hoping to have out of this
3 process, precisely the issues you are
4 addressing.
5
If I can just ask a question of Ms.
6 Maccallum: I am not sure that reducing the
7 number of packets you have to send from nine
8 to eight is going to actually make the
9 difference.
10
MS. MACCALLUM: I would like to go
11 from nine to zero, submit electronic
12 applications.
13
DR. BERLINER: I'm not sure it's not
14 going to take you 20 packets the next time you
15 put an application through, but I will leave
16 that to my colleagues.
17
The question I have is about the
18 process you are recommending for a more
19 transparent computer-based, web-based system.
20 I am wondering if you have thought about
21 having that system open to the public, at
22 least at the initial stages, so that everybody
23 in the public could actually see your
24 application, see what you are proposing, and
25 also be able to comment along the way. One of
00048
1 the complaints that we have is that people
2 don't find out about this until the night
3 before and have no idea what anything is
4 because there isn't much information posted
5 about it at present.
6
MS. MACCALLUM: That would be fine
7 with us.
8
MR. KENNEDY: Dr. Zinberg?
9
DR. ZINBERG: Ms. Waltman, I wanted
10 to follow up on your use of the word
11 "protectionism." One can't help but be struck
12 that you are really here, in a sense, one
13 speaker is cynical, it's a protection racket
14 for your constituent members. This is a way
15 to keep competition away from them, a way to
16 keep what someone might argue is a failed
17 hospital in business, when, perhaps, a more
18 efficient way of delivering care, not
19 necessarily even just more efficient but more
20 patient-friendly way of delivering care is
21 available.
22
I can't help but be struck by the
23 fact that every time an ambulatory surgery
24 center comes up for consideration, a local
25 hospital is there complaining, "This will
00049
1 drive us out of business." When you peel back
2 the layers of the onion, like I think we did
3 partly this morning in the Bronx Ambulatory
4 Center, the hospital involved is probably not
5 running a very good operation. They are
6 running an operation which is grossly under
7 utilized, yet they are trying to expand in the
8 hope that they are going to suddenly,
9 miraculously, by some unknown mechanism, start
10 to attract doctors from the community, when,
11 in fact, there may be instances when these are
12 services that hospitals just are not very good
13 at delivering. It may be much smarter to move
14 them into a more efficient setting.
15
If you could answer the question, why
16 isn't it better to, perhaps, recognize which
17 services hospitals don't do very well, move
18 them into a setting -- by the way, we have
19 shifted a lot of things. Years ago, all sorts
20 of things used to be done as an inpatient, now
21 they're done as an outpatient. One might
22 argue that the next step is to move them out
23 of the hospital altogether. So why shouldn't
24 patients have the option of getting care where
25 they want, in perhaps a more pleasurable
00050
1 setting, in a more efficient setting, and why
2 shouldn't physicians have the option of
3 practicing where they would like? After all,
4 if you ban all the surgery centers and -5
MR. KRAUT: Excuse me, I'm sorry, but
6 we are running a little late, so if you could
7 finish the question.
8
MS. WALTMAN: I think I understood
9 the question.
10
DR. ZINBERG: I think from the point
11 of view of physicians, though, you are locking
12 them into practicing at one particular place,
13 which may not run very efficiently and they
14 may not want to work there.
15
MS. WALTMAN: Having spent a lot of
16 time on this, I am the first person to
17 understand the competing issues here, but I
18 hope, I really hope, that when we talk about
19 this issue of out migration, that what we
20 really are focusing on is the fact that the
21 State of New York cannot afford, on behalf of
22 its public and our patients, to allow us to
23 become, as a hospital system, any weaker than
24 we already are. That's what it is.
25
I put the word "protectionism" out
00051
1 there because I knew that's where you were
2 going, and that's part of that debate, but we
3 have to face the fact that we are not
4 protecting us as hospitals, but protecting us
5 as providers of healthcare, providers of
6 meeting community needs as we deliver these
7 services. When that physician or ambulatory
8 surgery center opens, the State of New York
9 must look at the impact on the rest of the
10 healthcare system. Yes, it might close some
11 doors to that physician or to the patient who
12 might chose to be in another setting, I
13 absolutely appreciate that, but we can't
14 afford, I believe, as a State, to undermine
15 the hospital system, the healthcare, which is
16 right now the underpinning of a lot of
17 community services at this point in time.
18
The Berger Commission went through a
19 lot of effort to identify hospitals that were
20 not deemed to be meeting their community's
21 needs or where those needs could be better met
22 somewhere else.
23
MR. KENNEDY: Thank you.
24
Dr. Garrick, and then Mr. Sloma and
25 then we will wrap up.
00052
1
DR. GARRICK: Thank you for a
2 wonderful presentation. I just wonder if you
3 could comment on something. It has always
4 puzzled me a bit that when new high-tech
5 services come along, that physicians could buy
6 them, put them in their office practices with
7 little regard for CON's or for anything else
8 within their scope of utilization. I wonder
9 whether or not it might be feasible for high10 tech, largely radiologic and radiation
11 medicine and some other interventional
12 activity, to first be moved into a hospital
13 setting to make sure that it actually is safe,
14 effective, and appropriately utilized before
15 it moves into an office practice setting?
16
You mentioned something in your
17 presentation about the concept of needing to
18 put in CON's for high-tech services. I wonder
19 if you would comment on what your thoughts are
20 about the way we currently address high-end
21 technology in this State.
22
MS. WALTMAN: I am not a clinician;
23 however, I will say that as part of our
24 talking to our members, some of our members
25 very much will say, "Maybe we need more review
00053
1 of certain services." It is not all about
2 "let's not review, let's see how much we can
3 get out," but "let's look at what we should
4 review." I think there is a good argument for
5 certain high-tech services, that they should
6 be controlled in this fashion, as you
7 suggested initially, and then maybe even more
8 review than we are giving them now.
9
One thing I suggest in the testimony
10 is that if you increase the threshold to take
11 up a non-clinical, we still should go through
12 all of the projects, the types of services
13 that are left, as well as considering maybe
14 whether there are ways to actually have more
15 review for certain types of procedures or
16 services that might fall into what you
17 suggest.
18
MR. KENNEDY: Dr. Garrick, I am going
19 to defer now to Mr. Sloma. We are way over.
20
MR. SLOMA: My comments will be real
21 quick.
22
In support of Ms. Maccallum's
23 comments around CON, I've filed my fair share,
24 I think she was right, 100 percent right on
25 the money.
00054
1
The Department of Health has right
2 now an HPN network, the Health Provider
3 Network, where there is like a two-way way to
4 communicate between providers and the
5 Department, whether it's things like viruses
6 or bird flu or anything like that, but you can
7 also submit things like Medicaid cost reports,
8 so it appears that there is a vehicle already
9 in place, that if it was slightly modified
10 might work very nicely.
11
MR. KENNEDY: Thank you Ms. Waltman
12 and Ms. Maccallum. I appreciate your time and
13 your interest.
14
I would like to introduce Ms. Fran
15 Weisberg, Executive Director, representing the
16 Finger Lakes Health Systems Agency.
17
MS. WEISBERG: Thank you very much.
18 I am Fran Weisberg, the Executive Director of
19 the Finger Lakes Health Systems Agency.
20 Chairman Kennedy and Vice Chair Berliner,
21 thank you for inviting me here today to
22 provide input into the evaluation of the
23 Certificate of Need process.
24
As I am sure many of you know, FLHSA
25 as one of the only vestiges of the Health
00055
1 Systems Agency world, is an independent,
2 regional health planning organization that
3 serves nine counties in the Rochester and
4 Finger Lakes' region. We trace our roots
5 back, in fact, to the invention of community
6 health planning in the early 1960's, and I
7 have a wonderful history of health planning --
8 actually, it started in Rochester, New York,
9 with Eileen Folsom, who was a critic at the
10 time. When I started doing a lot of research
11 about what I was working on, it was so
12 amazing, what was going on back then and what
13 is going on now, how similar it really is.
14
Over the decades, FLHSA has provided
15 local and regional input into the State's
16 review of thousands of CON applications. We
17 provide technical assistance to the Community
18 Technology Assessment Advisory Board, known as
19 CTAAB, which reviews local projects and makes
20 recommendations to area health insurers about
21 the services they should cover; in fact, we
22 call it private CON. CTAAB is a locally based
23 and control decision maker. It extends the
24 State's capacity planning effort without
25 expanding regulatory authority or the CON
00056
1 process. It is a model to keep in mind as the
2 Committee continues to do its work.
3
Part of our role in the review
4 process is to collect and analyze data from
5 multiple sources -- payers, providers and
6 government -- that are then used to inform
7 State decision makers, but it's one of the
8 only two health planning agencies left in the
9 State. This HSA takes a much broader look at
10 everything. In fact, we deal with all aspects
11 of cost, quality and access. Our professional
12 analysts help stakeholders interpret health
13 data, to make informed decisions that improve
14 community health.
15
What I also think is most important
16 about the work we do is that we provide a
17 community table where key stakeholders in the
18 region come together to address critical
19 issues facing the healthcare system. What I
20 think of us now is that we are a coalition of
21 coalitions, and it's very rich. Hundreds of
22 people come through our office every day and
23 the glue that holds them together is the data
24 and the analytics where we do studies that say
25 what is going on in the community.
00057
1
Right now we have the Ryan White
2 Network with us; we have the LED coalition
3 with us; we have two very vibrant coalitions
4 working as African American Health and Latino
5 Health; each of those coalitions can have 40
6 to 50 people on them, representing every walk
7 of life in our community, folks that are from
8 doctors to people in the pews, to community9 based organizations that all come together to
10 analyze data and then inform the data so that
11 we can inform the State. We have an obesity
12 project, so, as you can imagine -- but there's
13 a lot that links them together.
14
Shortly after I became Executive
15 Director two years ago, my board and I took on
16 the challenge of developing a new strategic
17 plan. Our goal was to review our mission and
18 create a new Twenty-First Century model of
19 community health planning, because one of the
20 things I did learn more than anything is that
21 very few people I talked to, and I didn't know
22 much about this, wanted to go back to the "old
23 HSA's." We did do a White Paper, "Needed, a
24 Healthier Approach," redefining community
25 health planning for the Twenty-First Century.
00058
1
Under our new model, HSA continues to
2 do work in capacity management, but what is
3 most important is capacity management is only
4 a tool. We are expanding our mission beyond
5 the supply side of work. We would rather
6 focus on the community engagements I just
7 talked about, which is very key, that talks
8 about lowering the demand for hospital
9 services. Our goal, all of our goals, should
10 keep people healthy and not using the higher
11 healthcare services.
12
Our goal and our role is to
13 facilitate an original healthcare system that
14 focuses on patients who are personally more
15 accountable for their own health. You know,
16 health literacy, informs patients with the
17 knowledge they need to make better decisions,
18 reduce the demand for expensive inpatient care
19 and prevention and primary care. Of course,
20 it ensures that it uses information system
21 technology to help providers effectively
22 manage, prevent, and care for a chronic
23 illness. Lastly, and most importantly, it has
24 built in a commitment and collaboration for
25 multiple community stakeholders from inside
00059
1 and outside their healthcare system.
2
I believe this approach is in perfect
3 sync with the Department of Health's
4 commitment to a patient centered, high
5 performing healthcare delivery system that has
6 been talked about all throughout today. In
7 fact, a renewed commitment to partner with the
8 State is central to our strategic plan. It is
9 about giving people, as we all keep saying
10 now, the right care, at the right time, at the
11 right place.
12
The State plays an essential role in
13 setting policy, managing system capacity
14 through the CON process, and supporting access
15 to care. If it's effective regional planning,
16 we can also play that pivotal role. We help
17 to inform State decisions and tailor solutions
18 that fit the unique healthcare needs of our
19 local and regional communities.
20
As we look at the CON process and
21 discuss possibilities for withdrawing, it is
22 essential for New York to continue to have
23 some kind of CON process, and you will see
24 this when we talk about our 2020 Commission.
25 The process isn't perfect, but it works, and
00060
1 it is far preferable than having no check at
2 all or market forces regulating the supply of
3 essential medical services. As the calamities
4 in the financial markets are unfolding this
5 week, I've noted that Republicans and
6 Democrats alike seem to agree that a little
7 regulation can be a very good thing.
8
Through the CON process, hospitals
9 and healthcare systems put forth their
10 proposals. Communities provide local input
11 into those State decisions. The State Health
12 Department conducts its review and gives the
13 final say, informed by community comment. In
14 our region, HSA and the State Health
15 Department do have that symbiotic
16 relationship. Again, DOH collects data on
17 health and disease and I think our local group
18 makes that data sing. I think that because we
19 put it into our community lens. We helped to
20 craft solutions that meet local needs, even,
21 for example, on the inception to State
22 policies, when we can demonstrate that they
23 could adversely affect the local population.
24
One reform that is obviously clear
25 through this, through the whole CON process,
00061
1 is to support the expansion of regional and
2 local health planning throughout New York
3 State.
4
Today's discussion is quite timely
5 for me and the Finger Lakes, because I can
6 share a real life story with what happened
7 today, and I'm sure that for many of you, this
8 will be a redundancy, so I will try to go
9 quickly.
10
As you know, this morning, our
11 community, three hospital systems, had three
12 CON's all done at the same time before you.
13 HSA reviewed the CON applications from the
14 three major hospitals. Each hospital is
15 critically important to our community and each
16 made a strong case for modernizing very
17 out-of-date facilities. Each proposal was
18 excellent from the institution's perspective,
19 but collectively, the three proposals would
20 have added 278 beds to our community and an
21 increase of more than 22 percent of capacity
22 of med/surg, and, as we talked about, a great
23 deal of money needed for modernization.
24
So, in order for to us to look at
25 what was going on in our community, we
00062
1 convened the first ever Community Health
2 System 2020 Commission. The group's purpose
3 was to look at the hospitals, through a
4 community lens, examining what our region
5 needs, and what we can afford. The
6 Commission was composed of 17 community
7 leaders who offered a diverse healthcare
8 perspective. They enhanced our role and our
9 review and ensured involvement by all
10 stakeholders in the review. The group's
11 unique approach is to support the supply-side
12 need for facility modernization and expansion
13 with requiring hospitals to support community
14 initiatives to reduce demand for acute care
15 beds in the future.
16
The 2020 Commission, I believe, can
17 serve as a model for CON reform in the future.
18 It transforms CON from the typically reactive
19 mode to a more proactive effort. It shifted
20 the conversation from bricks and mortar into a
21 comprehensive, community-wide dialogue about
22 what is needed for a high-performing
23 healthcare system in our whole region. Our
24 local process, which informed the State about
25 what DOH has recommended at the Project Review
00063
1 Committee this morning, was actually truly
2 historic. We were thrilled to note that it
3 was a unanimous decision this morning as well.
4 The three hospital CON's were batched -- and
5 that was very critical -- by DOH, and assessed
6 on their collective impact to our community,
7 as well as their individual impact.
8
An important principle was to have
9 three strong Monroe County hospitals still
10 standing, while not jeopardizing the survival
11 of the rural hospitals in our region. The
12 review process was highly collaborative and
13 was collaborative in our community and with
14 the Department of Health.
15
The hospitals -- I hope the key
16 stakeholders and the community at large -17 commissioners conducted a transparent public
18 process; input was solicited from the CON
19 applicants, physicians, nurses, to business
20 community rural hospitals, minority community,
21 labor and business. Ultimately, the
22 Commission reached a unanimous consensus on
23 its data based recommendations -- unanimous:
24 They supported facility modernization at each
25 hospital, while reducing the collective
00064
1 requests by nearly 50 percent. The Monroe
2 County hospitals will now collaborate with all
3 the stakeholders to improve the measurable
4 elements that quantify the health system's
5 effectiveness. HSA will facilitate the
6 collaboration and monitor progress. There
7 will be a metric. The metrics that we will be
8 monitoring will help to focus initiatives to
9 improve the health of our community while
10 reducing the demand for care. These metrics
11 include PQI-related hospitalization, emergency
12 room utilization, Code Red frequency, the
13 supply of primary care docs, and length of
14 stay. By the way, if we don't move the
15 performance needle on these issues, that
16 number is going to have to go up. So it's in
17 the community's interest that we really work
18 together on those.
19
These recommendations include a
20 trigger mechanism that streamline expansion of
21 the applicants' inpatient capacity if demand
22 increases beyond the projections despite
23 improvement, meaning that if, in fact, in 2012
24 or later, these beds are needed, because we
25 can't really see into the future as accurately
00065
1 as we would like, that those be an expedited
2 process. The linkage is clear in
3 recommendation; hospitals are being encouraged
4 to modernize and expand based on data-growth
5 projections, but they must also engage with
6 the community to improve system performance.
7 Again, that's where the supply and demand and
8 the CON work together.
9
If the State looks at ways to reform
10 the CON process, it can hold up this
11 Commission, I believe, as a model. This
12 process worked well because it was community
13 driven. It examined individual proposals, but
14 as a community. I also think the process
15 showed how local communities can and should
16 have a very strong voice in State decisions
17 that impact their local community systems.
18
So I think there are many other ways
19 that I could talk about. I think the role of
20 data, local health planning, it does take
21 money and resources. The State CON process
22 and the need for regional health planning,
23 remain as relevant today as they have been,
24 especially in light of the Berger Commission.
25 That Commission was created because market
00066
1 forces alone had failed to control healthcare
2 systems' size and cost. In the end, the
3 Commission's work will be seen as just the
4 beginning. The Berger Commission reports
5 concluded, and I quote: Speed of change in
6 healthcare, driven by changing technology,
7 populations and finance, make it essential
8 that the work of reforming the system and the
9 regulatory framework must be continuous."
10
MR. KRAUT: Ms. Weisberg, we are
11 about three minutes away. If you could just
12 leave some time for questions. If you want to
13 make a closing statement?
14
MS. WEISBERG: Just to say that this
15 worked completely because it was a community
16 effort aligned with the Department of Health
17 and using CON to have everybody work together
18 as a community. Thank you.
19
MR. KENNEDY: Thank you.
20
Dr. Berliner?
21
DR. BERLINER: Ms. Weisberg, my
22 experience on SHRPC has been that on the rare
23 occasions when we actually get an application
24 that has been reviewed by an HSA, if the HSA
25 is for it, the State is recommending against
00067
1 it; if the HSA is against it, the State is
2 recommending for it. The actions this
3 morning, I think, are historic in more than
4 one sense, but it raises the question of that
5 contradiction between local health planning at
6 the very basic level and the kinds of things
7 the State is required, by law and statute, to
8 do.
9
The things that are going to be
10 monitored in Rochester: PQI, length of stay,
11 occupancy, those things are things that the
12 State can monitor just as easily as you can
13 monitor. There are things that the State
14 can't monitor because they are not there, but
15 you can. I am wondering if you could talk a
16 little bit about the kinds of things that you
17 can provide at the local level that the State,
18 just by nature of it not being local, can't
19 provide.
20
MS. WEISBERG: Let's use as an
21 example emergency room. I am going to leave
22 this document for you that we presented for
23 two of our coalitions about why people -- you
24 know, you are not going to really get in there
25 and spend the time to say, "Why are people
00068
1 using emergency rooms for primary care?" "Why
2 are they going back over and over and over
3 again?" And "Why are people ambulatory
4 sensitive admissions?"
5
What we think is by getting multiple
6 stakeholders together to do the research, to
7 find out what's going on that, collectively,
8 as a community, instead of fighting we're
9 going to decide together how we move the
10 performance needle. Then we and you monitor
11 together if it's working, but we are also
12 going to have solutions now, and the good
13 thing is -- no offense, I don't have a clue
14 about how the old HSA's worked and all of
15 those fighting. I do have ideas about why
16 this worked, and I do think that our
17 communities owning their own care -- and I
18 always say the right and the left can really
19 understand; this is about supply and demand,
20 and have people understand their own
21 healthcare and own it together. Then we say
22 to the State: "Our community is committed to
23 really changing the paradigm."
24
You can't do that. We are also going
25 to decide what issues are the worst and decide
00069
1 together what to set priorities on and what to
2 focus on. We don't want to boil the ocean. I
3 don't think you want to do that. We want your
4 data. We want you to set the vision that we
5 all want right care, right time, rate place,
6 but getting it done, I think, can be local.
7
MR. KENNEDY: Thank you. And thank
8 you for your presentation.
9
We are at the halfway point. We are
10 going to hear from Ms. Judy Wessler, who is
11 with the Commission on the Public's Health
12 System.
13
MR. KRAUT: I want to apologize. I
14 believe I called Ms. Weisberg "Ms. Wessler"
15 before.
16
MS. WESSLER: Actually, I like what
17 she said.
18
MR. KRAUT: That might shorten your
19 presentation.
20
MS. WESSLER: No.
21
MR. KRAUT: Please go ahead.
22
MS. WESSLER: Thank you. My written
23 testimony is being passed up, it's a lot
24 longer than the time that I have, but I just
25 want to highlight some of the pieces of it
00070
1 and, clearly, we come from quite a different
2 perspective, a community perspective.
3
There are two things I want to start
4 with: One is, you are asking about
5 Certificate of Need, CON. The last word is
6 "need," yet the definition of "need" is, the
7 way that we understand it currently is, the
8 code is very troubling, has nothing to do with
9 people or people needs, so that's a very good
10 place to start from and look at. We also feel
11 very strongly that CON and health planning
12 have to be looked at together; that they
13 should not be done in isolation. That's why I
14 particularly liked what Ms. Weisberg said.
15
I just wanted to go into some of the
16 details that we have in the testimony and
17 stress one particular piece. When we talk
18 about "need," we talk about people need,
19 community need, consumer needs, not
20 institutional needs, not financial needs, and
21 there is a real big difference in what you do
22 and how you look at what we think you need to
23 look at, as opposed to what is currently
24 required, the Certificate of Need process in
25 regulations, et cetera. So we need to start
00071
1 from that perspective.
2
Also to say that I was a member of
3 the Health System's Agency in New York City
4 and the Executive Committee, and there were
5 some really bad things that went on, but there
6 were also very important things that happened
7 within the health planning process,
8 particularly when there were what we called
9 "Saveric Councils" (ph), where providers and
10 consumers in local communities sat together
11 and really worked out a lot.
12
It was a lingering process on both
13 sides and, again, although there were
14 problems, there was also a lot of benefit, and
15 I don't think that we should say out of hand
16 that it didn't work, as many people are doing,
17 so that we don't have to look at processes
18 like that again. I would hope that you will,
19 and we would be happy to talk more about what
20 the benefits were, as opposed to all the
21 negatives. As a matter of fact, we worked
22 with the City Council in New York in 1998, I
23 believe, to sponsor legislation to restart a
24 Health Systems' Agency in New York City. Of
25 course, Greater New York Hospital Association
00072
1 opposed it and we did not get it through,
2 which was too bad. Now I think I hear them
3 saying they believe in health planning. So,
4 again, health planning and CON in the same
5 sentence, that is very important.
6
What I want to talk about a lot is
7 that in the 1980's I worked for legal services
8 and, also, as I said, was involved in the
9 Health Systems' Agency. We felt very strongly
10 in working with community organizations that
11 the State Health Department and the Health
12 Systems' Agency were ignoring what we felt was
13 very important -- and I am not a lawyer, by
14 the way, let me be clear -- was a very
15 important Federal and State regulation and
16 law, and that was the concept of access to
17 care as clearly defined in Federal law and,
18 again, repeated in State law. Access for low
19 income, communities of color, immigrant
20 communities, based on race and ethnicity,
21 based on age, and for women and disabilities.
22 That is, I believe, still the language in the
23 State law. It's totally ignored, but it's
24 still in the State law.
25
So we actually filed a civil right's
00073
1 complaint against the State and the New York
2 City Health System's Agency, that resulted in
3 negotiations. There were various parts and
4 outcomes of those negotiations, but one very
5 key part was -- actually it's attached to the
6 testimony, if you follow with me the last two
7 pages. It was called, and I negotiated this
8 with Ray Sweeney who was then at the State
9 Department of Health, the access schedule, the
10 facility access Schedule 18, which was not
11 required for all applications, but certainly
12 was required for large, capital construction
13 projects. I believe it was projects that
14 affected three or more services.
15
This is sort of out of date. If you
16 look at the bottom, it has 11/86 or 1/86, I
17 can't see, but that's when it went into use
18 and, unfortunately, in the Pataki era it went
19 out of use and nobody in the Health Department
20 knows about it any more. I would hate that we
21 have to file a complaint again or sue or
22 whatever else to require, once again, that the
23 State consider access to care. More
24 populations -- you asked Ms. Brown this
25 question, Dr. Berliner, and she answered, "No,
00074
1 it doesn't take it into account" -- it
2 doesn't.
3
This is the kind of thing that could
4 begin to capture some of the access data.
5 This needs to be renegotiated. I would take
6 Phil Burton questions off, for example,
7 because it's not a factor any more, but
8 there's Manning (ph) law questions or others,
9 and I would happy to sit down with whomsoever
10 and bring people together to talk about what
11 should be going in, but the fact is that there
12 has got to be some kind of schedule, some kind
13 of information gathering like this. If there
14 is really serious interest, and I'm hoping and
15 thinking from the invitation that there really
16 is interest in change and some redirection so
17 that we don't have another Berger Commission,
18 so that we can start thinking about resources
19 where they need to go, and for the types of
20 services that are really needed and would be
21 utilized. We don't have to talk about under
22 utilization because that shouldn't happen any
23 more.
24
I just want to finish. There are
25 some very specific answers to questions, I
00075
1 won't read them out; we did, however, skip
2 number one and say that we would start with, I
3 believe it's 2A, that clearly -- or 3,
4 question 3, because that, from our
5 perspective, is the important series of
6 questions.
7
I have also detailed some of the
8 activities that we have been involved in that
9 begin at a community level, do very competent,
10 very wonderful planning, do not require
11 providers but providers are allowed to be
12 involved in them, and they enrich what we do,
13 but that they are community driven with
14 excellent efforts. So I want to, again,
15 complete what I want to talk about by talking
16 about some principles.
17
Some principles on the last page of
18 our testimony that we would ask that you very
19 much consider in your discussions about CON
20 reform: Again, step number 1 is what is meant
21 by "need," and how is that defined and how
22 must it be redefined; from our concept, how
23 must it be redefined? We would ask you to
24 look at the definition of the concept of
25 "need."
00076
1
That racial and ethnic disparities
2 and access to healthcare should be a primary
3 consideration in planning, expansion and
4 decreases in services. People have made
5 comparisons to other states; we are so far
6 behind in looking at disparities -- from the
7 State, looking at disparities, there's lots of
8 it -- at the community level, but lots of
9 states have done very important work on this
10 issue and New York State has not. So that is
11 certainly something we need to catch up on.
12
Community based health planning
13 should include community health needs'
14 assessments and collaborative efforts between
15 community and providers; make expansion and
16 prevention and primary care services the
17 priority, and that's where funding should go
18 as well. Require that almost all CON's be
19 based on the collaborative effort that we
20 talked about. Use community data and tools,
21 such as a revised and updated Schedule 18, to
22 assess applications. There also needs to be a
23 redistribution of wealth and resources, and,
24 the favorite, stop the empire building. If
25 you look at -- someone asked a question, I
00077
1 think it was you, Dr. Berliner: Should
2 networks be able to move resources around?
3 If you look at Saint Vincent's Catholic
4 Medical Center, and how they have devastated
5 medically under served communities in this
6 City, and they actually had to go through a
7 process and got approval to do it, which was a
8 crime from my perspective -- that may be a
9 strong word -- but the fact that they were
10 allowed to strip medically under served
11 communities, like Central Brooklyn and South
12 Jamaica and now they may get approval to build
13 a nice, new building on 12th Street and
14 Seventh Avenue, which is where I live, but I
15 think it's an outrage if they get approval
16 after stripping other communities.
17
That's the kind of concepts and needs
18 and different ways of looking at it. Also, we
19 feel very strongly, again, following up on
20 that point, that there needs to be a
21 strengthening of the CON process for the
22 reduction closing of services, particularly in
23 medically under served communities. Right now
24 an application is filed and it's like a joke.
25 You know, they close before they file the
00078
1 application, and nobody is really looking at,
2 Is this something that should happen? That's
3 very scary and we would wish, again, that that
4 would change.
5
Finished, I would just ask that lots
6 of people would be really willing to sit down
7 with members of this Council, members of the
8 State Health Department and others, to talk
9 about more specifics on what we feel should
10 and could be done. It's great that the State,
11 that the Governor and the Health Department
12 put money in the legislature, in the budget,
13 to do some models of community health
14 planning, and maybe out of that we will have a
15 better sense of direction. Maybe we should go
16 with that, but we are not doing well now.
17 Obviously, there are serious changes needed
18 and, hopefully, you are serious about working
19 with the likes of us to try to make those
20 changes. Thank you.
21
MR. KENNEDY: Thank you, Ms. Wessler.
22 Thank you for providing some specifics. I
23 know Dr. Berliner and Mr. Kraut both have
24 comments.
25
MR. KRAUT: I think this may be an
00079
1 issue, just to echo something that Ms. Wessler
2 said. The issue about the Schedules 18, 19,
3 facility access, and picking up what Cynthia
4 Maccallum said about a standing database. If
5 we modified, let's say, the community service
6 plan, let's look beyond just Certificate of
7 Need, we have to file a lot of this
8 information as part of the community service
9 plan. So, to the degree that some information
10 is useful and informs the conversation at a
11 Certificate of Need review, "Who do you
12 serve?" "What's the Medicaid access?" "What
13 is the service there?" Those are standing
14 pieces of information that we file anyway
15 every year or every two or three years we
16 update it. There is probably a lot of benefit
17 of making sure that that information is always
18 available in a conversation; it may not need
19 to be filed with a CON, but should be
20 accessible through the community service plan.
21
I am just suggesting, when we kind of
22 synthesize the comments, not just look on CON
23 reform, but let's look at other places that
24 we're filing data and see if we can bring it
25 to bear on some of the issues Ms. Wessler
00080
1 spoke about.
2
MS. WESSLER: If I may respond to
3 that: One of the other outcomes of the civil
4 right's complaint that we filed was we tried
5 to get into the patient's Bill of Rights the
6 language that healthcare facilities would
7 serve everybody, regardless of the ability to
8 pay. Unfortunately, the Health Department
9 caved on that and set up what was called a
10 task force on the ability to pay. That was
11 chaired by Bruce Vladeck, and came up with the
12 proposal to have community services' plans by
13 hospitals, instead of allowing access to care.
14
People have tried to get copies of
15 community service plans from hospitals in New
16 York City, and the hospital association called
17 them and asked them why they wanted it. These
18 are public documents. I'm sorry, I don't
19 think it works. I know people think community
20 services' plans are wonderful; we, in the
21 community, don't. They're hard to get hold
22 of, and it's more of a public relation's
23 vehicle than something that actually helps the
24 community or provides information.
25
I'm sorry to challenge you that way,
00081
1 but maybe your hospital does it right, maybe
2 you are open with it, but that is not the rule
3 and saying that that be a substitute to
4 collecting this kind of data, I think, would
5 be very troubling.
6
DR. BERLINER: Ms. Wessler, I am
7 calling you "Ms. Wessler" because you called
8 me "Dr. Berliner."
9
MS. WESSLER: Howard, you can call
10 me Judy.
11
DR. BERLINER: Thank you, Judy.
12
Two questions: The first is, how do
13 you feel -- I mean, we regulate hospitals.
14 That has its good side and its bad side. You
15 pointed out some of the negative parts of it,
16 but also some of the good parts of it, in
17 terms of requiring hospitals to provide
18 services. How do you feel about the
19 regulation of non-hospital providers,
20 physicians, dentists, through the same kind of
21 a CON mechanism that would, also, perhaps,
22 have the same kinds of -- actually what you
23 were just talking to. Is there a way of
24 requiring people to provide services,
25 independent of ability to pay?
00082
1
MS. WESSLER: Are you asking me if
2 there is a legal way of doing that? No.
3 Should this be done? Absolutely. Totally,
4 yes. Actually, you know, it is done, there
5 are very small healthcare providers that are
6 part of other institutions that are required
7 to file CON applications, modified but still
8 file them, so why shouldn't some of the other
9 types of providers that you are talking about
10 also be required?
11
DR. BERLINER: Within that vane, do
12 you think the general -- you know, we've heard
13 Ms. Waltman talk about protectionism and other
14 uses of CON as a franchise and things like
15 that, within that context, the way that it has
16 been brought up here today; do you think we
17 should continue CON in its current form? I
18 guess I am asking you sort of a summary
19 judgment. Is it, overall, better that we have
20 it or would it be better without it or in some
21 radically different form?
22
MS. WESSLER: It depends on whether
23 we want Wall Street or we want some services.
24 You know, if we want fiscal collapse or
25 economic crisis because nobody was minding the
00083
1 store and perhaps making money and encouraging
2 them to do whatever they were doing which I
3 don't want to know about. All I know is my
4 401K is suffering, that kind of thing.
5
Yes, we absolutely need a process,
6 and what we are encouraging is reforming the
7 process, making it better so that it works not
8 for the benefit of institutions, but it works
9 for the benefit of communities who are
10 supposedly the ultimate recipients. So, the
11 short answer is "yes."
12
MR. KENNEDY: Thank you, Ms. Wessler.
13
At this point we are going to hear
14 from Ms. Elizabeth Swain, who is the Chief
15 Executive Officer of the Community Healthcare
16 Association of New York.
17
MS. SWAIN: Good afternoon. My name
18 is Elizabeth Swain. I'm the Chief Executive
19 Officer of the Community Healthcare
20 Association of New York State, CHCANY. CHCANY
21 is New York's primary care association and a
22 State wide association of community health
23 centers, also known as Federally qualified
24 health centers or FQHC's. New York's health
25 centers serve as a family doctor and
00084
1 healthcare home for over 1.1 million New York
2 State residents, at more than 425 sites, rural
3 and urban.
4
Community, migrant, and homeless
5 health centers offer comprehensive primary
6 care, including family medicine, pediatrics,
7 obstetrics, gynecology, dental, laboratory,
8 mental health and substance abuse services.
9 Health centers are located in designated
10 under-served communities and provide an array
11 of services targeted at those who are the
12 hardest to reach. Most health center patients
13 have family incomes below the Federal poverty
14 level. 74 percent are racial or ethnic
15 minorities; 43 percent are covered by
16 Medicaid; and 28 percent are uninsured.
17
Health centers are, by design and by
18 law, community based and patient focused, and
19 that is because every federally qualified
20 community health center has a board that is
21 composed of patients of the health center. A
22 majority of every community health center
23 board must see patients at the health center,
24 ensuring that each health center is both
25 patient focused and truly community based.
00085
1
We appreciate the Department of
2 Health and the State Hospital Review and
3 Planning Council's sincere efforts to access
4 and improve the CON process and to take a
5 fresh look at revitalizing health planning.
6 We've got a healthcare system that is
7 disjointed, inefficient, and inequitable. CON
8 reform and improvements in health planning are
9 important pieces of the puzzle in reforming
10 healthcare in New York State in order to
11 improve access and quality while reducing cost
12 and disparities.
13
We appreciate the opportunity to be
14 involved in the State's efforts to improve
15 healthcare for all New Yorkers. In
16 anticipation of this hearing we surveyed
17 community health centers across New York State
18 to gain a more complete understanding of their
19 on-the-ground responses and recommendations.
20 My testimony will summarize and reflect upon
21 our thinking about the CON and health planning
22 in general. The survey responses have been
23 compiled and synthesized and are included in
24 an addendum to my testimony.
25
Regarding the CON process: For
00086
1 safety net primary care providers, like
2 community health centers, it rarely feels as
3 though there is a level playing field. We are
4 often smaller than other institutions and we
5 are, by design, a mandate located in areas
6 where we do not have significant opportunity
7 for revenue generation. The CON process
8 itself was clearly developed with larger,
9 inpatient facilities in mind, rather than
10 primary care clinics. Small entities with few
11 resources frequency do not have staff members
12 who are fluent in the CON process, and they
13 have limited funds available to hire private
14 consultants to shepherd a project. The
15 process can be lengthy, time consuming, and
16 draining on limited resources. Healthcare
17 providers must operate like any other
18 business, and like any other business, the
19 regulatory environment can either support or
20 drag down business.
21
In our survey, many health centers
22 cited that the process is incredibly slow,
23 requires too many steps from submission to
24 approval. There are too many forms, and often
25 the forms are needlessly held up on someone's
00087
1 desk. When CON applications take six months
2 to complete, providers are waiting and losing
3 ground. It then becomes difficult for them to
4 respond or change their community in a timely
5 fashion.
6
In a new CON process, some types or
7 sizes of projects should be subject to a
8 streamlined application and undergo a simpler,
9 speedier review. These might include, for
10 example, expansion of existing services such
11 as primary, renovation projects under a
12 certain amount, equipment generally available
13 in a physician's office and the addition of a
14 new office space for preventive care
15 services -- for example, dental, mental
16 health, especially office-based consults. In
17 addition, an automatic approval time
18 requirement should be added so that certain
19 CON requests should be deemed "approved"
20 automatically within a short time frame -- for
21 example, 60 days -- if action is not taken.
22
Providers that are willing to take
23 all patients, regardless of insurance status
24 or ability to pay, should be rewarded;
25 particularly if they exist in or are moving
00088
1 into under-served areas. This is one way that
2 the State can facilitate improved access. We
3 propose rewarding applications from safety-net
4 providers that take all patients, by
5 expediting the approval process, establishing
6 higher thresholds for projects to qualify for
7 administrative review, providing assistance in
8 preparation and data research, prioritizing
9 expansion approval and giving reductions in
10 any associated fees. In addition, the State
11 should enforce uninsured sliding-fee rules and
12 ensure that they are posted in visible places
13 within institutions.
14
The process should also reward
15 applicants that meet properties established by
16 the Department of Health, such as improving
17 access to primary care, extending hours of
18 primary care and diminishing unnecessary
19 emergency room costs and usage. Projects that
20 are focused on addressing extraordinary means,
21 unique world needs, increased utilization of
22 community based care, health disparities and
23 other similar factors should also receive
24 special CON consideration.
25
These are factors in developing a
00089
1 comprehensive needs' plan and multiple health
2 planning should include this type of data
3 review. The plan presented should meet some
4 of the required criteria.
5
Regarding health planning data and
6 the CON, the CON process should take into
7 consideration and support local, regional, and
8 State wide health planning goals. Organized,
9 coordinated, properly funded community health
10 planning should inform State policy regarding
11 the CON process and local planning, though we
12 are not suggesting that local health planning
13 entities conduct reviews with specific CON
14 applications.
15
Effective health planning should
16 provide the foundation for establishing the
17 need and aid in simplifying and shaping the
18 CON process. There are also opportunities for
19 the State to coordinate the work of the
20 agencies that are engaged in data collection.
21 There are at least three important issues with
22 regard to data from local health planning, the
23 first, is addressing data gaps. There are
24 large gaps in health data that's available in
25 New York. There is consensus that we need
00090
1 better data on non-physician clinicians,
2 including practice settings. To date there is
3 a relative abundance of data on inpatient care
4 and little data on the ambulatory care
5 provided in clinics or physicians' offices.
6
Comprehensive community-level data is
7 needed that includes information on health
8 disparities; payers; high-need patients,
9 including those best served in a language
10 other than English; costs and utilization.
11 Secondly, insuring that health data is
12 publicly available at the smallest geographic
13 unit -- I.E. a census tracked zip code. Go to
14 the large populations and land areas in most
15 counties, county-level data frequently masks
16 significant differences within and between
17 communities.
18
Thirdly, insuring that local agencies
19 can assess and understand the data. In order
20 to ensure community involvement, data should
21 be accessible to community users, especially
22 those lacking technical skills.
23
Regarding SHRPC representation, the
24 SHRPC could be more thorough by diversifying
25 its membership in a variety of ways, including
00091
1 bringing on more community ambulatory care and
2 non-institutional members. CHCANY's members,
3 New York's community health centers, care for
4 a patient population that is extremely
5 diverse. 35 percent are Hispanic or Latino;
6 34 percent are black African American; 26
7 percent are white; and 5 percent are Asian or
8 Islanders. More than one in four health
9 center patients are best served in a language
10 other than English, and by design, community
11 health center boards and staff are reflective
12 of the communities they serve.
13
CHCANY is eager to work with the
14 SHRPC and policy leaders to ensure
15 representation that is diverse in terms of
16 healthcare sector expertise and experience,
17 race, ethnicity, gender, and geography.
18
Thank you for the opportunity to
19 comment. CHCANY and its members look forward
20 to continuing to work with you in terms of all
21 New Yorkers, particularly ensuring that those
22 living in under-served communities have access
23 to high-quality, community based healthcare
24 services.
25
MR. KENNEDY: Thank you, Ms. Swain.
00092
1
Questions?
2
MR. KRAUT: I am intrigued with the
3 recommendation of treating the federally
4 qualified health centers slightly differently
5 because of the unique role they have with the
6 Certificate of Need. Do you have any sense
7 of, other than establishment, how many CON's
8 collectively -- I know this is kind of
9 catching you off guard, but how many CON's
10 collectively your membership might have filed
11 in the last three or four years, and is it for
12 facility issues like expansion or programs?
13 Is it a licensing issue for services or is it
14 to move to a facility or to build out a room?
15
I am just trying to get a sense
16 because I can see an argument being made that
17 these things might, if not go to full review,
18 may be treated administratively or are they
19 being treated administratively or with limited
20 reviews now, that can make it a little easier
21 for these organizations?
22
MS. SWAIN: I don't have that
23 information.
24
MR. KRAUT: I don't need it now, but
25 it would interesting --
00093
1
MS. SWAIN: We can get it for you,
2 for sure.
3
MR. KRAUT: On the other hand, I
4 don't want to kind of carve out "this group"
5 and "that group" either, but there may be an
6 argument made that because of the access
7 issues and the focus on access, that you can
8 get special consideration.
9
MS. SWAIN: Just to clarify, the
10 point I was making also was based on the fact
11 that health centers are established in
12 medically under-served areas that have already
13 been designated as studied and established.
14
MR. DELKER: Jeff, in general,
15 except for new facilities, most of the D&T
16 center projects are under 10 million. So they
17 are getting administratively -- a lot of them
18 are under 3 million or something like that.
19
MR. KRAUT: So it's really on the
20 processing side?
21
MR. DELKER: Right.
22
DR. BERLINER: I am wondering if you
23 find, as the hospitals do, that some of your
24 patient base is migrating away towards
25 physicians' offices or ambulatory diagnostic
00094
1 and surgery centers? Has that been something
2 that your membership has talked about?
3
MS. SWAIN: No. No, we are not
4 losing -- we just recently studied very
5 carefully the impact that seeing a large
6 number of commercially insured patients is
7 having on the health centers, an interesting
8 study that we did last year. We are having
9 precisely the opposite. We're having a
10 migration into health centers of patients who
11 are either uninsured -- increasing numbers of
12 uninsured or under-insured patients. So a lot
13 of commercially insured patients who are
14 poorly reimbursed.
15
The health centers, about 51 percent
16 of the revenues in the health centers in the
17 State of New York are Medicaid revenues.
18 There is an increasing sort of alarming number
19 of commercially insured patients who are
20 really under, as all providers struggle with
21 that, but because health centers are
22 subsidizing essentially a large uninsured
23 patient population with revenues that don't
24 often cover everything, that with all of our
25 costs, it's a big issue for health centers.
00095
1
MR. KENNEDY: Ms. Swain, from where
2 you sit with CHCANY, how would you advise this
3 body, in viewing the reality and the growth of
4 pre-clinics -- I'm thinking particularly in
5 upstate, places like Schenectady and Ithaca
6 and Syracuse, Rochester, in terms of the
7 continuum of care, particularly for the
8 population you just described?
9
MS. SWAIN: Healthcare providers
10 volunteer in so-called free clinics; while
11 well intentioned and they're certainly doing
12 it out of the goodness of their heart, it's a
13 problem. Free clinics are a problem. They're
14 hard to manage, they're hard to regulate. The
15 quality of care is really spotty. The
16 research on free clinics is just not a good
17 way to provide healthcare because it is not
18 regulated and it's not managed in any way. It
19 doesn't provide any sort of continuity of
20 care. Providers come and go.
21
I ran a community health center for
22 many years, and we had a volunteer -- mainly
23 dentists, because dental care was much harder
24 than medical care -- and it was great to have
25 somebody who was willing to come in and
00096
1 volunteer but we never agreed to accepting
2 volunteers unless they were willing to commit
3 to a regular schedule so that they could
4 manage a patient panel and provide some
5 continuity.
6
Free care, there really isn't any
7 free care. Free care is not necessarily free,
8 because the cost of managing a patient who has
9 a potentially complex illness when you're
10 dealing with a churning provider set as well
11 as a churning patient set.
12
MR. KENNEDY: Thank you.
13
Any other questions?
14
(No response.)
15
Thank you.
16
Our last presenter for today is Mr.
17 Gavin Kearney, staff attorney for the New York
18 Lawyers for the Public Interest. They were a
19 member of the Coalition for Community Health
20 Planning.
21
MR. KEARNEY: Good afternoon and
22 thanks for the opportunity to provide
23 testimony on ways to improve the Certificate
24 of Need process. As already stated, my name
25 is Gavin Kearney. I am the Director of the
00097
1 Access to Healthcare Program at New York
2 Lawyers for the Public Interest. We are a
3 non-profit, civil rights firm -- I guess the
4 testimony is just getting circulated now -- we
5 are a non-profit civil rights law firm, formed
6 in 1976 to address the unmet legal needs of
7 New Yorkers and, in particular, our Access to
8 Healthcare Project was created in 1978, and is
9 focused on ensuring access to high quality
10 healthcare for New York City's low-income
11 communities of color.
12
Over the last several years we have
13 worked with a number of community coalitions
14 in New York City, fighting to preserve and
15 enhance critical healthcare resources in their
16 already under-served communities. As stated,
17 we're also a member of the Coalition for
18 Community Health Planning or CCHP, which is a
19 diverse coalition of community-based
20 organizations, providers, advocacy groups and
21 others whose overall mission is to
22 institutionalize community-based health
23 planning processes throughout the State, in
24 order to ensure the provision of and access to
25 quality healthcare services for medically
00098
1 under-served populations. Although my
2 testimony isn't exclusively endorsed by the
3 larger coalition, much of what I have to say
4 today comes out of our work with the
5 coalition.
6
By way of framing, I just want to
7 underscore a couple of lessons that have come
8 out of our work with community coalitions to
9 address healthcare needs. We have been
10 working with communities over the last several
11 years in Central Brooklyn, Southwest Brooklyn,
12 Southeast Queens, and the Northeast Bronx, and
13 I think these are lessons that are obvious and
14 not controversial, but also worth iterating:
15 One is that healthcare decisions that are
16 driven solely or primarily by financial
17 considerations often fail the health needs of
18 low-income communities. I would also add that
19 in a broader sense such decisions are often
20 not driven by a full consideration of fiscal
21 impacts, particularly when you look at the
22 fact that residents of these communities are
23 then forced into more expensive emergency
24 care.
25
By way of example, financially driven
00099
1 clinic closures in Central Brooklyn over the
2 recent past have left 6,000 residents without
3 access to local services and resulted in the
4 loss of primary care screening and other
5 services. As I mentioned already, residents
6 of this community are disproportionately
7 likely to lack a primary care physician, and
8 also disproportionately and likely to make
9 expensive emergency room visits when ill.
10 That pattern is exacerbated by these closures.
11
Another lesson that our work has
12 underscored is that to be effective, planning
13 for healthcare must be transparent and it must
14 involve the stakeholders in the community that
15 are most knowledgeable about its healthcare
16 needs and resources, and those stakeholders
17 that are most affected by healthcare
18 decisions. This lesson is illustrated by the
19 ways in which the Berger Commission's planning
20 and implementation have affected communities
21 in New York City. Although a stated goal of
22 the Commission was to save hospitals critical
23 to serving access, achieving that goal was
24 undermined by recommendations that led to the
25 closure of several New York City hospitals in
00100
1 under-served, medically under-served
2 communities. While some degree of public
3 outreach was performed as part of this
4 process, the opacity of the decision-making
5 process makes it difficult to determine the
6 degree to which locally articulated needs
7 affected Commission recommendations,
8 recommendations which ultimately were
9 implemented.
10
With that in mind, we offer a handful
11 of recommendations to improve the CON process.
12 The recommendations that we offer focus on
13 using effective, participatory health planning
14 as a means to better alignment of healthcare
15 resources with community need. First, I will
16 recommend a process or elements of a process
17 that could be used to more accurately assess
18 public needs, and then I will discuss
19 recommendations for ensuring that that
20 assessment meaningfully drives allocation
21 decisions.
22
Public participation is essential to
23 effect a need's assessment in health planning.
24 Such an assessment should look comprehensively
25 at a community's health profile and the needs
00101
1 for services that it suggests rather than more
2 narrowly at whether there exists sufficient
3 demand to ensure utilization of a given
4 service. Public participation is key, because
5 among other things, local stakeholders possess
6 a wealth of knowledge about healthcare needs
7 and the utility of existing healthcare
8 resources that are not captured by existing
9 quantitative data. Supplementing quantitative
10 data with qualitative knowledge gained through
11 public participation ensures that relevant
12 gaps in knowledge are addressed rather than
13 implicitly ignored.
14
To be meaningful, public
15 participation must occur early and it must
16 occur often. In order to ensure that
17 stakeholders are involved, notification of
18 pending CON applications should be provided in
19 multiple languages, driven by the language
20 demographics of the affected area.
21 Notification should also occur through
22 channels such as local media, local elected
23 officials and local providers, and in
24 addition, efforts should be made to develop
25 outreach lists that tap into a given
00102
1 community's social infrastructure.
2
In the communities with which we
3 work, key conduits of information include
4 social service agencies, local faith-based
5 organizations, local community boards, and
6 various other community-based organizations.
7 Developing distribution lists that utilize
8 these resources, particularly in medically
9 under-served areas, will be essential to
10 effective planning.
11
As stated, opportunities for
12 meaningful input should occur regularly, and
13 we think that a useful model for considering
14 how to accomplish this is the environmental
15 review process required by the New York State
16 Environmental Quality Review Act, otherwise
17 known as SEQRA. SEQRA is designed to ensure
18 that potential impacts of a proposed decision
19 -- potential environmental impacts of a
20 proposed decision are fully assessed and that
21 thorough consideration is given to ways in
22 which potential negative affects can either be
23 avoided or mitigated.
24
While we are in favor of a more
25 comprehensive plan in medicine, solely
00103
1 responsive to particular CON applications, we
2 believe that the SEQRA process offers useful
3 lessons either for broader planning or for
4 application-specific assessments. Although
5 flawed in some ways, and I won't go into
6 those, SEQRA includes an explicit process for
7 assessing impacts and developing remedial
8 measures, and it's a process that requires
9 public participation at several key junctures
10 throughout the decision-making process. It
11 also requires that public input be addressed
12 by the applicable agency.
13
Projects undergo an initial limited
14 evaluation to determine whether significant,
15 adverse impacts are likely to occur. If the
16 answer is "no," further analysis is not
17 required. If the answer is "yes," fuller
18 consideration of impacts is required in the
19 form of an environmental impact assessment.
20 Stakeholders are given the opportunity to
21 challenge the initial determination that a
22 significant impact will or will not result.
23
During environmental impact
24 assessment, public participation is required
25 in the scoping phase, and during the scoping
00104
1 phase, the breadth of impacts is to be
2 evaluated and decided upon and methods for
3 evaluating those impacts are also decided
4 upon. Stakeholders and public participation
5 is already required during the assessment
6 itself. Stakeholders are given opportunities
7 to comment on conclusions drawn with respect
8 to projected impacts, and the viability of
9 measures for avoiding or mitigating them,
10 including additional measures for doing so.
11
Both the scope of assessment and the
12 assessment itself is published in draft form.
13 Once comments are received they are required
14 to be explicitly addressed before either the
15 scope or the assessment can be finalized. We
16 believe that this framework can be used to
17 improve the CON process in a number of ways.
18 In order to avoid unnecessary delay or expense
19 resulting from a CON review, an initial scan
20 of potential impacts of an application is to
21 be used to determine the intensity with which
22 the application was reviewed.
23
In addition, similarly engaging the
24 fact that stakeholders, through an application
25 review process, would help ensure that the
00105
1 needs of the affected area and, thus, the
2 potential impacts of a proposed action are
3 adequately considered. Require that
4 legitimate concerns and questions be
5 addressed, but also add to the accuracy and
6 the credibility of the process.
7
We also strongly recommend that a
8 needs' assessment exclusively consider race
9 and ethnicity. As has been demonstrated in
10 Massachusetts and elsewhere, race and
11 ethnicity data can and should be used to
12 ensure that decision making in the health
13 arena doesn't exacerbate existing disparities
14 with access to healthcare. Such data are
15 critical to identifying gaps in healthcare and
16 developing effective measures for addressing
17 them.
18
In terms of ensuring that a needs'
19 assessment forms decision making, we have
20 several recommendations as well. One
21 criticism of the CON process is that it is
22 reactive in nature. It depends on specific
23 applicants coming forward before local health
24 needs can be addressed. One way to make this
25 process more proactive in nature without
00106
1 fundamentally restructuring it would be to
2 engage in a healthcare needs' assessment
3 outside the context of specific applications.
4 The results of such assessments could be used
5 to broadly communicate priority needs for a
6 given area and to invite and/or incentivize
7 applications that meet those needs.
8
Consistent with current regulations,
9 key areas of need that should be prioritized
10 include low-income populations, populations of
11 color, people with disabilities, and other
12 medically under-served areas and demographics.
13 Possible ways to incentivize applications that
14 are responsive to these needs would include
15 waiver or expedition of review, where
16 appropriate; assistance in preparing
17 applications that address critical needs;
18 higher thresholds for triggering full review
19 where an application addresses critical needs;
20 and fee reductions for applications that
21 address critical needs.
22
Ensuring that key areas of need are
23 met through the CON process could also be
24 aided by a review process that gives public
25 need greater weight vis-a-vis financial
00107
1 considerations in low income and medically
2 under-served areas. Shifting weight in such
3 circumstances would account for the reality
4 that those care providers that are most
5 financially troubled are also those that
6 provide the most needed care, care that is
7 uncompensated or poorly compensated.
8
Thanks for the opportunity to offer
9 these comments.
10
MR. KENNEDY: Thank you, Mr. Kearney.
11
Questions for Mr. Kearney?
12
I would like to thank you for the
13 number of ideas in there that reemphasize
14 things that have already been said, as far as
15 racial and ethnic -- the need for racial and
16 ethnic data in order to more fully address the
17 disparities' issue, but also an issue that
18 hasn't been brought up before, and the
19 Department has mentioned that, is the use of
20 an RFP kind of vehicle. That kind of a
21 creativity, imaginative thinking is
22 appreciated.
23
Thank you, Mr. Kearney.
24
MR. KEARNEY: Sure.
25
MR. KENNEDY: In terms of our next
00108
1 steps in this process, what we would like to
2 do in a not-too-distant future meeting is to
3 ask our colleagues on the Public Health
4 Council to come back and reconvene with us,
5 the Planning Committee, and Karen Lipson and
6 her staff will organize the testimony
7 highlighting the salient features and issues,
8 and then we will have an opportunity to
9 discuss this and make some decisions moving
10 forward, and prioritize the variety of issues,
11 big and small, as we heard today and as we
12 heard back in July, and create a strategy
13 moving forward.
14
I would like to, on behalf of the
15 Department staff, remind those who presented
16 today to please, if you haven't done this
17 already, put your presentation in electronic
18 form, and send it to the Department staff so
19 that we can put that up on the website. Some
20 of the testimony from back in July is already
21 on the website, and our hope is to put all of
22 it up to, again, increase our transparency as
23 part of this overall process which we have
24 been talking about today.
25
I would like to take this opportunity
00109
1 to thank my colleagues around the table on the
2 Council, and again for our colleagues from the
3 Public Health Council today, and also to
4 Chairman Kraut for his leadership in keeping
5 this process moving forward.
6
At this point I would like to ask for
7 a motion to adjourn.
8
DR. BERLINER: So moved.
9
MS. JIMINEZ: Second.
10
MR. KENNEDY: Thank you.
11
MR. KRAUT: Thank you everybody for
12 staying. I know it is a long, long day, but
13 once or twice every eight or nine years, it's
14 reasonable.
15
(Time noted: 3:50 p.m.)
16
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00110
1
CERTIFICATION
2
3
I, MARGARET EUSTACE, a Shorthand
4 Reporter and Notary Public, within and for the
5 State of New York, do hereby certify that I
6 reported the proceedings in the
7 within-entitled matter, on September 18, 2008,
8 at 90 Church Street, New York, New York, and
9 that to the best of my ability, the above
10 proceedings are an accurate transcription of
11 what transpired at that time and place.
12
IN WITNESS WHEREOF, I have hereunto
13 set my hand this _______ day of
14 ___________________________, 2008.
15
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________________________
17
MARGARET EUSTACE,
18
Shorthand Reporter
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